Opinion
2014-06-20
Jared A. HOFFERT, Plaintiff, v. Jeffrey M. KATZ, Defendant–Appellant–Respondent, Croyle, Inc., Defendant–Respondent–Appellant, Sen Bros. Enterprises, Inc., doing business as GNS Construction, Defendant–Respondent, et al., Defendants.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains (Cary Maynard of Counsel), for Defendant–Appellant–Respondent. Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Edward J. Smith, III, of Counsel), for Defendant–Respondent–Appellant.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains (Cary Maynard of Counsel), for Defendant–Appellant–Respondent. Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Edward J. Smith, III, of Counsel), for Defendant–Respondent–Appellant.
Richard P. Plochocki, Syracuse, for Defendant–Respondent.
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, and VALENTINO, JJ.
MEMORANDUM:
Defendant Jeffrey M. Katz appeals and defendant Croyle, Inc. (Croyle) cross-appeals from an order and judgment rendered after a nonjury trial that denied and dismissed all of the cross claims. We affirm for reasons stated in the decision at Supreme Court. We add only that we agree with Croyle that the court erred in concluding that Croyle was not entitled to indemnification from Katz for its defense costs, including attorneys' fees, absent a contractual or statutory basis, but we nevertheless affirm. The “common-law right of indemnification against the party actually at fault encompasses the right to recover attorneys' fees, costs, and disbursements incurred in connection with defending the suit brought by the injured party” ( Chapel v. Mitchell, 84 N.Y.2d 345, 347, 618 N.Y.S.2d 626, 642 N.E.2d 1082). It is well settled, however, that common-law indemnification may be imposed against only those parties, i.e., indemnitors, who “actually directed and supervised the work” ( McCarthy v. Turner Constr., Inc., 17 N.Y.3d 369, 378, 929 N.Y.S.2d 556, 953 N.E.2d 794). Here, the record establishes that plaintiff's employer exclusively directed and supervised the injury-producing work, and Croyle is therefore not entitled to common-law indemnification from Katz ( see generally Ferrero v. Best Modular Homes, Inc., 33 A.D.3d 847, 850–851, 823 N.Y.S.2d 477,lv. dismissed8 N.Y.3d 841, 830 N.Y.S.2d 693, 862 N.E.2d 784).
It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs.